GROUNDHOG DAY What’s New in White Collar Sentencing?

Report
Sentencing in Fraud Cases
Guideline Amendments
Below-Guideline Sentences
Wrightsville Beach, North Carolina
March 14, 2013
Jennifer Niles Coffin
Sentencing Resource Counsel
Federal Public and Community Defenders
FRAUD – FY 2011
National
ED North Carolina
FY 2011
30 months [24 months]
National
41 months
MD Florida
54.5%
13.7%
17.4% [16.3%]
58.7%
17.1%
13%
Govt sponsored
Split Sentences
Above
26.3%
14.9% [15.3%]
1.7%
22.6%
19.8%
5.6%
Judge Below
22.6% [23.6%]
18.6%
Govt Below
20.5% [23.7%]
33.3%
Total Below
43.1% [46.3%]
51.9%
Average Sentence Length
(not counting probation)
Within
Probation
Non-govtOnly
sponsored
Source: Tables 4, 7 & 10,
http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics/State_Distri
ct_Circuit/2011/nce11.pdf
The Guidelines Are Not “Heartlands”
% Within
% Judge
Below
% Govt Below
% Above
Fraud
50.5
23.6
23.7
2.2
Money
Laundering
35.7
26.2
36.9
1.0
Tax
37.2
40.8
20.7
1.2
Forgery/Counte
rfeiting
65.9
19.0
11.7
3.2
Bribery
31.5
32.8
35.2
0.5
Environmental
54.5
26.4
18.1
0.0
Antitrust
5.0
15.0
80.0
0.0
Food & Drug
69.1
7.3
16.4
7.3
USSC, Preliminary Quarterly Data Report, 4th Quarter Release, tbl.3.
By District and Circuit: Get from Interactive Sourcebook on www.ussc.gov when 2012
Sourcebook comes out.
To Get the Lowest Sentence
• Low-as-Possible Guideline Range
• Structural problems with the guidelines:
– GLs do not include factors bearing on culpability (e.g.,
motive, mens rea), or any mitigating circumstances
bearing on the need to incapacitate or deter
– Range is flawed – e.g., it has increased 500% since 1987
for no reason related to sentencing purposes
• Individualized mitigating circumstances
– E.g., motive, age, education, family, etc.
• Structural problems – Rita, Kimbrough:
– Guideline recommends punishment greater than
necessary to satisfy sentencing purposes aside
from special mitigating facts
• Mitigating facts -- Pepper, Gall:
– The mitigating facts in this case are relevant to the
purposes of sentencing and the parsimony command.
• Departure if available – e.g., offense level overstates
seriousness, 2B1.1, note 19
– Do not argue for a departure alone.
Guideline Range
Amendments Nov. 1, 2011
Specific congressional directive in Patient
Protection and Affordable Care Act -- § 10606
•“aggregate dollar amount of fraudulent bills” submitted
to government health care program is “prima facie
evidence of the amount of the intended loss by the
defendant” –
– D has to rebut it
•“loss plus” -- extra 2-, 3-, and 4-level increases for
loss of $1mm-$7mm, $7mm-$20mm, over $20mm
– if health care offense related to government health
care program
Amendments Nov. 1, 2012
• Two general directives in the Dodd-Frank
Wall Street Reform and Consumer Protection
Act, Pub. L. No. 111-203, secs. 1079A(a)(1)
& (a)(2) (2010).
– Review, and if appropriate, amend.
• 5 amendments to commentary to § 2B1.1,
including two new rebuttable presumptions.
• 1 amendment to § 2B1.4 and 2 amendments
to commentary to § 2B1.4.
USSG § 2B1.1 – Securities Fraud
• Rebuttable presumption that “modified
rescissory method” provides “reasonable
estimate of the actual loss.”
– Difference in average price of security during
period fraud occurred and average price during 90day period after disclosure of the fraud.
– NOT “market adjusted method” as in Olis (5th Cir.)
and Rutkoske (2d Cir.)
– But D can show change in value was caused by
external forces not caused, foreseen, or intended
by D
USSG § 2B1.1 – Securities Fraud
• New downward departure example of
offense level overstates seriousness of
offense.
– “A securities fraud involving a fraudulent statement
made publicly to the market may produce an
aggregate loss amount that is substantial but diffuse,
with relatively small loss amounts suffered by a
relatively large number of victims”
– “In such a case, the loss table in subsection (b)(1) and
the victims table in subsection (b)(2) may combine to
produce an offense level that substantially overstates
the seriousness of the offense.”
USSG § 2B1.1- Mortgage fraud
• Rule for determining credit against loss where
collateral has not been disposed of at the time of
sentencing.
Rebuttable presumption that the most recent tax
assessment is a “reasonable assessment of the fair
market value,” with factors for the court to consider.
– Where tax assessed value is much lower than FMV, will
lower presumptive credit and increase presumptive loss
amount
– Burden on D to show tax assessed value is not a
reasonable estimate of FMV
– Government said this method, though easy, “is not always
a just statement of the value of the property.”
USSG § 2B1.1
• +4 for substantially endangering the
solvency or financial security of an
organization
– Still get it if one or more criteria listed “was
likely to result from the offense but did not
because of a federal government intervention,
such as a bailout.”
• New upward departure example if
offense created risk of substantial loss
beyond loss determined under loss
table:
– “Such as a risk of significant disruption of a
national financial market.”
USSG § 2B1.4 – Insider
trading
• Minimum offense level 14 if offense involved “an organized
scheme to engage in insider trading.”
– Comm’n’s “view” that such Ds (as opposed to opportunists)
“warrant[], at a minimum, a short but definite period of
incarceration.”
– Ensures that GL “requires” prison even if little gain.
• Abuse of position of trust
• +2 under §3B1.3 “should be applied” if D was employed in
a position creating, issuing, buying, selling, or trading
securities or commodities
– Examples
– “would apply” (e.g., hedge fund professional)
– “ordinarily would not apply” (e.g., clerical worker in investment firm)
Loss
• actual or intended (the greater)
• relevant conduct: reasonably foreseeable
and within scope of D’s agreement
• “credits” and other ways to mitigate loss
• gain only if there is a loss (can’t be no
loss) but it can’t reasonably be determined
Decisions on Loss
US v. Manatau , 647 F.3d 1048
(10th Cir. 2011)
– “[T]o be included in an advisory guidelines
calculation the intended loss must have been an
object of the defendant’s purpose.”
– “We hold that ‘intended loss’ means a loss the
defendant purposely sought to inflict. ‘Intended
loss’ does not mean a loss that the defendant
merely knew would result from his scheme or a
loss he might have possibly and potentially
contemplated.”
• Exclude loss caused by other factors - in securities
cases – overcome new rebuttable presumption and
use this method
– US v. Olis, 429 F.3d 540 (5th Cir. 2005)
– US v. Rutkoske, 506 F.3d 170 (2d Cir. 2007)
– US v. Nacchio, 573 F.3d 1062 (9th Cir. 2009)
• Actual loss must have causal link to D’s conduct
– US v. Whiting, 471 F.3d 792 (7th Cir. 2006)
– US v. Rothwell, 387 F.3d 579 (6th Cir. 2004)
– US v. Allmendinger, 706 F.3d 330 (4th Cir. 2013)
(downward departure may be appropriate “where actual
loss caused by the defendant’s fraud has other causes
more proximate than the fraud”)
• Mortgage fraud – use actual loss unless D
intended lenders would not be repaid
US v. Goss, 549 F.3d 1013 (5th Cir. 2008)
• US v. Crandall, 525 F.3d 907 (9th Cir. 2008) error not to reduce loss by value of properties
• US v. Leonard, 529 F.3d 83 (2d. Cir. 2008) error not to reduce “loss” by investment’s
value to victims
• US v. Goss, 549 F.3d 1013 (5th Cir. 2008) loss must be reduced by value of collateral
returned
• US v. Staples, 410 F.3d 484 (8th Cir.
2005) - loss should be reduced by FMV of
collateral at time of sentencing
• US v. Redemann, 295 F. Supp. 2d 887
(E.D. Wis. 2003) - downward departure
where loss was caused by multiple factors
and defendant’s gain was miniscule
– Note – this should be framed as a variance or
variance and departure today
• US v. Coghill, 204 Fed. Appx. 328 (4th Cir.
2006) - loss = outstanding principal less
amount victim recovers from liquidation
• US v. Confredo, 528 F.3d 143 (2d Cir.
2008) - defendant entitled to show he
subjectively intended loss less than face
amount of loan application
• No “economic reality” principle under the
guidelines” – loss includes amounts
“impossible or unlikely to occur”
• Grounds for departure if impossible or
unlikely -- variance or variance plus departure
today
• US v. McBride, 362 F.3d 360 (6th Cir.
2004)
Evidentiary Hearings
• United States v. Thomas, Criminal Action No. 11–
10172
– Government proffered “loss” in excess of $1,300,000 in
mortgage fraud scheme
– Evidentiary hearing “winnowed [it] down” to $350,408.88.
– Government filed motion to add back loss of $185,267.87
from a particular sale
• Even if successful, will be less than half the
government's claimed “loss”
Described in US v. Gurley, 860 F. Supp.2d 95 (D.
Mass. 2012)
Some offender characteristics
now “may be” relevant as grounds for
departure
•
•
•
•
Age
Mental and emotional conditions
Physical condition including physique
Military service
If “present to an unusual degree and distinguish the case
from the typical cases covered by the guidelines”
Same standard as “not ordinarily relevant” – “present to
an exceptional degree”
• Drug or alcohol dependence or abuse now “ordinarily not
relevant” rather than “not relevant”
If Judge Likes Departures
• Check Compilation of Departure Provisions
– http://www.ussc.gov/Guidelines/2011_Guidelines/Manual_PDF/Co
mpilation_of_Departure_Provisions.pdf
• Also listed in back of 2012 Manual
– 35 downward departure provisions
Often subject to narrow restrictions and limitations
– 23 neutral departure provisions (up or down)
12 of which appear in rarely used GLs
– Watch out -- 166 upward departure provisions
Often very broadly stated
• Never argue for a departure alone.
18 U.S.C. 3553(a)
• Shall impose a sentence sufficient but not
greater than necessary to satisfy the need for
just punishment in light of the seriousness of the
offense, deterrence, incapacitation, rehabilitation
in the most effective manner
• In light of all offense and offender
circumstances, all kinds of sentences available
by statute, and avoiding unwarranted disparities.
Courts Must Consider All Mitigating Factors,
Ignore Contrary Policy Statements
•Gall v. United States, 552 U.S. 38, 50 n.6, 5660 (2007)
– 3553(a)(1) is a “broad command to consider . . .
the history and characteristics of the defendant”
– Court approved variance based on factors the
policy statements deem “not” or “not ordinarily
relevant” and ignored the policy statements
Question is Whether the Facts are Relevant to Purposes
and Parsimony
Pepper v. United States, 131 S. Ct. 1229, 1242-43 (2011)
“No question” that Pepper’s
–
–
–
–
–
remaining drug-free for five years
attending college and achieving high grades
succeeding at work
re-establishing a relationship with his father
marrying and supporting a family
Are “highly relevant” to the need for deterrence,
incapacitation, and treatment and training
And “bear directly on the District Court’s overarching duty
to ‘impose a sentence sufficient, but not greater than
necessary’ to serve the purposes of sentencing”
Policy statement prohibiting consideration of these
factors was not a reason to uphold 8th Circuit’s
judgment
– “the Commission’s views rest on wholly unconvincing
policy rationales not reflected in the sentencing
statutes Congress enacted.” Id. at 1247.
– Policy statements that conflict with § 3553(a) may
not be elevated above relevant factors. Id. at 1249.
– Judge must instead give appropriate weight to
relevant factors. Id. at 1250.
Courts Must Consider All Kinds of Available
Sentences, May Ignore Zones
• Must consider all “kinds of sentences available”
by statute, § 3553(a)(3), even if the “kinds of
sentence . . . established [by] the guidelines”
recommend only prison. Gall, 552 U.S. at 59 &
n.11.
• Probation authorized for any offense with a
statutory maximum below 25 years unless
expressly precluded. See 18 USC § 3561(a);
18 USC § 3559(a).
Courts May Vary From Guidelines That Lack
Empirical Basis and Recommend
Punishment Greater Than Necessary
• Rita, 551 U.S. at 351, 357
– Judge may find the “Guidelines sentence itself fails properly to
reflect § 3553(a) considerations,” or “reflects an unsound
judgment”
• Kimbrough v. United States, 552 U.S. 85, 101 (2007)
– “courts may vary [from Guideline ranges] based solely on policy
considerations, including disagreements with the Guidelines.”
(citing Rita)
– not an abuse of discretion to conclude that a guideline that is not
the product of “empirical data and national experience . . . yields
a sentence ‘greater than necessary’ to achieve §3553(a)’s
purposes, even in a mine-run case.”
Support Arguments with Evidence
• Not much explanation required for a GL sentence if it is
“clear” the sentence is based on USSC’s “own reasoning”
and you did not contest the GL sentence. Rita, 551 U.S.
at 357.
• Judge need not address “frivolous” arguments. Id.
• Judge must consider nonfrivolous arguments and must
explain why if he rejects them. Id. at 351, 357.
• If fails to explain how the sentence complies with 3553(a)
or fails to address your arguments and evidence, reverse
for procedural error. Gall, 552 U.S. at 51.
Procedural Error
• “Significant procedural error”
– Fail to calculate the guidelines correctly
– Treat the guidelines as mandatory
– Fail to consider 3553(a) factors
– Fail to address parties’ arguments
– Fail to adequately explain
• Comes before review for substantive
reasonableness.
Frequent Reversals on D’s Appeal
for Procedural Error
• At least 81 within, 29 below, and 11 above
guideline sentences reversed for failing to
explain why sentence is SBNGTN in light of the
arguments and evidence presented.
• Only 5 within, 10 above, and 2 below guideline
sentences reversed as substantively
unreasonable on D’s appeal
• See http://www.fd.org/docs/select-topics--sentencing/app_ct_decisions_list.pdf
When courts of appeals reverse for inadequate
explanation or failure to adequately address a
nonfrivolous argument, the sentence on remand
is different
in the majority of cases.
Jennifer Niles Coffin, Where Procedure Meets Substance:
Making the Most of the Need for Adequate Explanation
(Nov. 2011),
http://www.fd.org/pdf_lib/Procedure_Substance.pdf;
CHAMPION, MAR. 2012, at 36.
Fourth Circuit
Has reversed 24 within-guideline sentences
and 6 above-guideline sentences on D’s
appeal for failure to address a nonfrivolous
argument or failure to explain the sentence
imposed in terms of 3553(a).
United States v. Lynn, 592 F.3d 572 (4th Cir. 2010)
No reversals for substantive
unreasonableness on D’s appeal.
What Kind of Evidence?
• Facts showing the guideline itself
–recommends a sentence greater than necessary to
achieve sentencing purposes
–was not developed based on empirical data and
national experience
• Facts about the defendant and the offense
+ empirical evidence showing why those facts are
relevant to purposes and parsimony
• Tie the evidence to purposes and parsimony
Seriousness of Offense
Should = Harm + Culpability
1. Nature and Seriousness of Harm
2. Offender’s Degree of Blameworthiness, e.g.,
–
–
–
–
–
Mens rea
Motive
Role
Mental illness
Other diminished capacity
Richard S. Frase, Excessive Prison Sentences,
Punishment Goals, and the Eighth Amendment:
“Proportionality” Relative to What?, 89 Minn. L. Rev.
571, 590 (February 2005)
Guidelines One Dimensional
• Constructed solely of aggravating factors said to reflect
“harm” --- Loss + Enhancements
• Fail to include intent, motive, capacity, any mitigating
offender characteristics; small effect for role
– “wide variety of culpability” among Ds with same amount
of “loss.” US v. Cavera, 550 F.3d 180, 192 (2d Cir. 2008)
(en banc)
– Numerous mitigating factors bearing on culpability not
included in the guidelines. US v. Ovid, 2010 WL 3940724
(E.D.N.Y. 2010)
Guidelines do not address, or reject, other
§ 3553(a) purposes and factors
• No attempt to reflect “need” for deterrence,
incapacitation, rehabilitation
• Mitigating factors required to be considered under §
3553(a)(1) prohibited or discouraged as grounds for
“departure”
• “Kinds” of sentences permitted by statute other than
prison, § 3553(a)(3), generally not recommended
GUIDELINES = MATH WITHOUT SUBTRACTION.
Loss not a good measure
of offense seriousness
•
Loss “is not a fair representation of the defendant’s culpability” where “[t]here is
no evidence that the defendant intended to enrich himself personally or intended
to harm the [] project or the taxpaying public.” US v. Prosperi, 686 F.3d 32 (1st
Cir. 2012) (affirming downward variance from GL range of 87-108 mos. to 6
mos. home detention + 1,000 hours community service).
•
Amount of loss is often “a kind of accident” and thus “a relatively weak indicator
of [ ] moral seriousness . . . or the need for deterrence.” US v. Emmenegger,
329 F.Supp.2d 416 (S.D.N.Y. 2004).
•
The “Guidelines . . . in an effort to appear ‘objective,’ tend to place great weight
on putatively measurable quantities, such as . . . the amount of financial loss in
fraud cases, without, however, explaining why it is appropriate to accord such
huge weight to such factors.” US v. Adelson, 441 F.Supp.2d 506 (S.D.N.Y.
2006), aff’d, 301 Fed. Appx. 93 (2d Cir. 2008).
•
Loss “is not always a reliable proxy for the culpability of an individual defendant.”
United States v. Lenagh, 2009 WL 296999, *3-4, 6 (D. Neb. Feb. 6, 2009).
•
Gain to an insider trader is “[a]t best . . . a very rough surrogate for the harm to .
. . the institution that owned the information.” US v. Gupta, __ F. Supp. 2d __
(SDNY 2012).
Relevant Conduct
• John Steer, former Commissioner and co-author of
“Relevant Conduct: The Cornerstone of the Federal
Sentencing Guidelines,” now says:
– uncharged conduct “is the aspect of the guideline that
I find most difficult to defend.”
– acquitted conduct should not be used to calculate
range.
• See An Interview with John Steer, CHAMPION, Sept.
2008, at 40, 42.
• See also Deconstructing the Relevant Conduct
Guideline, http://www.fd.org/navigation/select-topics-incriminal-defense/sentencingresources/subsections/deconstructing-the-guidelines
41
Factor Creep
• Cumulative and overlapping increases -- Comm’n
recognizes problem. See USSC, Fifteen Year Review at
137
• “This precision is false.” Breyer, Federal Sentencing
Guidelines Revisited, 11 Fed. Sent. R. 180 (Jan./Feb.
1999)
• Judge should vary or depart.
–With 6 additional SOCs, “the calculations under the
guidelines have so run amok that they are patently
absurd on their face.” US v. Adelson, 441 F.Supp.2d
506 (S.D.N.Y. 2006)
Judges recognize 2B1.1 often recommends
a sentence that is too high
• “Although I began the sentencing proceeding ‘by
correctly calculating the applicable Guidelines range,’ ...
it is difficult for a sentencing judge to place much stock in
a guidelines range that does not provide realistic
guidance.” United States v. Parris, 573 F. Supp. 2d 744,
751 (E.D.N.Y. 2008)
• The “Guidelines were of no help; if not for the [five-year]
statutory maximum, the Guidelines for an offense level
43 and criminal history I would have called for a
sentence of life imprisonment” for a defendant who made
no $$. United States v. Watt, 707 F. Supp. 2d 149 (D.
Mass. 2010)
• “As has become common among district courts
sentencing white-collar offenders in financial
fraud cases, the Court finds that the loss
calculation substantially overstates the gravity of
the offense here and declines to impose a
within-Guidelines sentence.”
United States v. Faulkenberry, 759 F. Supp. 2d 915, 928
(S.D. Ohio 2010), aff’d, 461 Fed. App’x 496 (6th Cir.
2012).
Guidelines “reflect an ever more draconian approach to
white collar crime, unsupported by empirical data.”
“By making a Guidelines sentence turn on this single factor
[loss or gain], the Sentencing Commission ignored
[3553(a)] and . . . effectively guaranteed that many such
sentences would be irrational on their face.”
“The numbers assigned by the Sentencing Commission . . .
appear to be more the product of speculation, whim, or
abstract number-crunching than of any rigorous
methodology -- thus maximizing the risk of injustice.”
US v. Gupta, __ F. Supp. 2d __ (SDNY Oct. 24, 2012)
(Rakoff, J.)
• “Since Booker, virtually every judge faced with a toplevel corporate fraud defendant in a very large fraud
has concluded that sentences called for by the
Guidelines were too high.”
Frank O. Bowman III, Sentencing High-Loss Corporate
Insider Frauds After Booker, 20 Fed. Sent. R. 167, 169,
2008 WL 2201039, at *4 (Feb. 2008).
Jurors too …
• Mail Fraud
– GL range -- 37-46 months
– Juror average – 7 months
• Perjury
– GL range -- 21-27 months
– Juror average – 2 months
Judge James S. Gwin, Juror Sentiment on Just
Punishment: Do the Federal Sentencing Guidelines
Reflect Community Values?, 4 Harvard Law & Policy
Review 173 (2010).
USSC “Priority”
• Multi-year study of 2B1.1 and possible amendments
in response to:
– high rates of below-range sentences in cases involving
relatively large loss amounts in securities fraud and similar
offenses
– public comment and judicial opinions suggesting impact of
loss table or victims table (or combined impact) may
overstate culpability
– Proposed Priorities (May 2012); 77 Fed. Reg. 2778, 278384 (Jan. 19, 2012); Priorities, 77 Fed. Reg. 51, 1113 (Aug.
23, 2013)
– Will be holding a roundtable Fall 2013
“[T]he fraud guideline, despite its excessive complexity, still
does not account for many of the myriad factors that are
properly considered in fashioning just sentences, and
indeed no workable guideline could ever do so.” United
States v. Ovid, slip op., 2010 WL 3940724, *1 (E.D.N.Y.
Oct. 1, 2010)
“While the fraud guideline focuses primarily on aggregate
monetary loss and victimization, it fails to measure a host
of other factors that may be important, and may be a basis
for mitigating punishment, in a particular case.” Alan Ellis &
John Steer, At a “Loss” for Justice: Federal Sentencing for
Economic Offenses, 25 Crim. Just. 34 (2011)
How It Happened
Two reasons it may be “fair to assume that the
Guidelines, insofar as practicable, reflect a rough
approximation of sentences that might achieve
§3553(a)’s objectives.” Rita, 551 U.S. at 350.
1.
Commn used “empirical approach” to develop initial
guidelines, beginning “with an empirical examination of 10,000
presentence reports setting forth what judges had done in the
past.”
2.
Guidelines can “evolve” in response to judicial decisions,
sentencing data, criminological research, and consultation with
experts and all stakeholders (not just DOJ).
Rita, 551 U.S. at 349-50.
“Notably, not all of the Guidelines are tied to this
empirical evidence.” Gall, 552 U.S. at 46 n.2.
• Did not include probationary sentences in estimating
average past sentence length, or in making probation
available
– 38% of all sentences in 1984 were probation; now
about 7%
• Prohibited or deemed “not ordinarily relevant”
offender characteristics considered in the past
• Required increases for acquitted and uncharged
crimes (“relevant conduct”) at same rate as if
charged and convicted
51
White Collar Sentences
“Significantly More Severe” than Past Practice
Initial guidelines “significantly more severe than
past practice” for “the most frequently sentenced
offenses in the federal courts.”
– White collar offenses
– Drug trafficking
– Crimes of violence
U.S. Sent’g Comm’n, Fifteen Years of Guidelines
Sentencing at 47 (2004),
http://www.ussc.gov/Research/Research_Projects/Misce
llaneous/15_Year_Study/chap2.pdf
52
Comm’r Breyer explained …
• Some complain white collar guidelines “too harsh,” but
– “once the Commission decided to abandon the
touchstone of prior past practice, the range of
punishment choices was broad” and the “resulting
compromises do not seem too terribly severe.”
• But guidelines will “evolve” based on information from
actual practice – i.e., departures.
Stephen Breyer, The Federal Sentencing Guidelines and
the Key Compromises Upon Which They Rest, 17 Hofstra
L. Rev. 1, 18-20, 23 (1988).
“Evolved” in a One-Way Upward Ratchet
Amended in a “one-way upward ratchet
increasingly divorced from considerations of
sound public policy and even from the
commonsense judgments of frontline sentencing
professionals who apply the rules.”
Frank O. Bowman III, The Failure of the Federal
Sentencing Guidelines: A Structural Analysis, 105 Colum.
L. Rev. 1315, 1319-20 (2005).
54
Mythical Deterrence Rationale
• Original Commission -- “the definite prospect of prison,
though the term is short, will act as a significant deterrent to
many of these [economic] crimes, particularly when
compared with the status quo where probation, not prison,
is the norm.” USSG, ch. 1, intro., pt. 4(d) (1987).
• Abandoned “short” but “definite”
• All empirical research shows longer sentences do not deter.
James Client Memo at 14-15; Baron-Evans & Coffin,
Sentencing by the Statute at 7-10.
• No difference in deterrent effect of prison v. probation for
white collar offenders. See David Weisburd et al., Specific
Deterrence in a Sample of Offenders Convicted of White
Collar Crimes, 33 Criminology 587 (1995)
Example
• James Client, owner of securities firm managing
pension funds and health benefit savings
accounts
• Embezzled $19 million client funds
Sent. Memo., http://www.fd.org/docs/SelectTopics---sentencing/James-Client----FraudSentencing-Memo----4-12-11.pdf
Guideline Range
7
base offense level
20
loss between $7 - 20 million
6
more than 250 victims
2
sophisticated means
2
abuse of position of trust
-3
acceptance of responsibility
_______________________________________________
TOTAL OFFENSE LEVEL 34
GUIDELINE RANGE 151-188 months
Past Practice Sentence Touted in Rita
18-24 months for highest $$ sophisticated
fraud
18% received probation
•U.S. Sent’g Comm’n, Supplementary Report on the Initial
Sentencing Guidelines and Policy Statements 33 (1987),
http://www.src-project.org/wp•content/pdfs/reports/USSC_Supplementary%20Report.pdf
Commission abandoned past practice
and violated a congressional directive
in the very beginning.
Comm’n “decided to abandon the touchstone of prior past
practice” with respect to white collar offenses. Breyer, 17
Hofstra L. Rev. at 22-23.
A “sentence other than imprisonment” is “general[ly]
appropriate[]” where the defendant is a first offender who
has not been convicted of a crime of violence or an
otherwise serious offense” 28 U.S.C. § 994(j).
500% Increase Since 1987
• Past Practice Sentence – based on “10,000
presentence reports,” Rita v. US.
– 18-24 months for highest $$ sophisticated fraud
– 30-37 months for highest $$ sophisticated
embezzlement
• 1987 -- 30-37 months
• 1989 – 46-57 months
• 2001 – 108-135 months
• 2008 – 151-188 months
For No Good Reason
1989: 4 levels added if $20 M loss
• “to provide additional deterrence and better reflect the
seriousness of the conduct.” App. C, Amend. 154 (Nov.
1, 1989)
Real reason:
• DOJ convinced 4 Commissioners that statutes were “oblique
signals” from Congress when statutes “said no such thing”
• “gratuitously” increased for reasons “overtly political and inexpert”
• abandoned statutory mandates by failing to rely on own data, failing
to measure the effectiveness or efficiency of guideline sentences,
and failing to provide analysis of prison impact
– Jeffrey S. Parker & Michael K. Block, The Sentencing Commission,
P.M. (Post-Mistretta): Sunshine or Sunset?, 27Am. Crim. L. Rev. 289
(1989)
• Contrary to all evidence re deterrence.
2001: 5 more levels added if $20 M loss
• Increased for moderate and high loss amounts.
• Removed more than minimal planning but folded it into
increased penalties for moderate and high loss and kept
2 levels for sophisticated means.
• Stated reason:
“[C]omments received from the Department of Justice, the
Criminal Law Committee of the Judicial Conference, and
others, that the offenses sentenced under the guidelines
consolidated by this amendment under-punish individuals
involved with moderate and high loss amounts, relative to
penalty levels for offenses of similar seriousness
sentenced under other guidelines.” App. C, Amend. 617
(Nov. 1, 2001).
What did they really say?
• AAG Robinson for DOJ: “sentences for economic
crimes should not be set, in our view, to match
sentences for drug crimes.”
– http://www.ussc.gov/Research/Research_Projects/Economic_Cri
mes/20001012_Symposium/ePlenaryIII.PDF
at 59.
• Judge Gilbert for CLC: drug crimes are “punished too
harshly,” high loss fraud “too leniently,” “apples and
oranges.” Id. at 56.
• Prof. Cohen: “drug offenses are broke so they need to
be fixed,” but no “evidence that fraud is broke,” and
“deterrence isn’t supported.” Id. at 65-66, 69.
Raised Fraud Guideline
Based on Drug Guidelines
• Drug Guidelines Based on Mandatory
Minimums, not empirical research or nat’l
experience. Kimbrough, 552 US at 96; Gall,
552 US at 46 n.2
• Upward ratchet in action
2003: raised BOL from 6 to 7
• DOJ applied intense pressure on Comm’n
to raise all sentences, then enlisted a
Senator to change the legislative history,
invoking drug guidelines.
Frank O. Bowman III, Pour Encourager
Les Autres?, 1 Ohio State J. Crim. L. 373
(2004).
Additional Enhancements Based on Directives
Without Empirical Support
 Comm’n need not do anything in response to general
directives - study and amend if appropriate
 Comm’n is required to follow specific congressional
directives
 Courts are free to vary from resulting guidelines based
on policy considerations or individual circumstances
Brief for the United States, Vazquez v. United States, 2009 WL 5423020.
The “premise that congressional directives to the Sentencing Commission
are equally binding on the sentencing courts . . . is incorrect.”
Petition granted, judgment vacated, remanded for reconsideration.
Vazquez v. United States, 130 S. Ct. 1135 (2010).
What would Client have to do to get the same
or a lower guideline range?
• Rob a bank of any amount over $5 million,
discharge a firearm = 135-168 months
• Second degree murder = 168-210 months
• Voluntary manslaughter = 63-78 months
• Forced sexual act with a child under 16 = 135-168
months
• Aircraft piracy = 168-210 months
• Distribute 49 kg. of cocaine and possess a firearm
= 135-168 months
• Sell or buy a child for use in production of
pornography = 168-210 months
Objective Number for Sentence
You Propose
• Past practice sentence for sophisticated fraud
with highest $$ amount
• 18-24 months
• 18% received probation
• At most, 1987 guideline range of 30-37 months
• Back it up or reduce further with evidence of
individualized circumstances bearing on the
purposes of sentencing
A Modest Proposal
“The Sentencing Commission to this day has
never been able to articulate why it has two
points for this, or four points for that. . . . These
are just numbers. And yet once they are placed
the whole thing is blessed and said to be
rational.”
“[T]he [fraud guidelines] should be scrapped in
their entirety and in their place there should be a
non-arithmetic, multi-factor test."
– Judge Rakoff (E.D.N.Y.) (keynote speech at the
ABA’s Nat’l Inst. on White Collar Crime, March 2013).
Just Punishment in Light of the
Seriousness of the Offense
3553(a)(2)(A)
Reduced Culpability
US v. Ovid, 2010 WL 3940724 (E.D.N.Y. 2010)
–
–
–
–
–
–
–
Did not start as a fraud, started with best of intentions
Never drew a salary
Provided his own money
Cut back on costs
Wasn’t present for some key events
Fully forthcoming
Truly remorseful
Varied to 60 months from 210-262 months at
government’s request
Motive, Intent, Remorse, No Gain, Efforts at
Restitution, Good Character
Varying from 78-97 months to 24 months in insider trading
case where D did not share in monetary gain and behavior
was aberrant. US v. Gupta, __ F.Supp. 2d __ (SDNY
2012)
“[T]here is a wide variety of culpability amongst [white
collar] defendants” that is not reflected in loss, so decisions
to “impose different sentences based on the factors
identified in § 3553(a,)” “if adequately explained, should
be reviewed especially deferentially.” US v. Cavera, 550
F.3d 180 (2d Cir. 2008).
Aberrant, Isolated Incident, Financial
Pressures
• U.S. v. Hadash, 408 F.3d 1080, 1084 (8th Cir. 2005) (“law
abiding citizen, who [did] an incredibly dumb thing”)
• U.S. v. Howe, 543 F.3d 128 (3rd Cir. 2008) (“isolated
mistake” in otherwise long and entirely upstanding life)
• U.S. v. Davis, 2008 WL 2329290 (S.D.N.Y. June 5, 2008)
(prompted by economic pressures of unemployment by first
offender who had throughout his 15-year marriage worked
at lots of jobs to educate his six children)
• United States v. Gupta, __ F. Supp. 2d __ (SDNY Oct. 24,
2012) (Rakoff, J.) (“[USPO] believe[s] the defendant’s
commission of the instant offenses was aberrant
behavior — not aberrant as defined by the U.S. Sentencing
Guidelines, but rather as defined by Merriam-Webster: . . .
Atypical.”)
Collateral consequences add
punishment
US v. Anderson, 533 F.3d 623 (8th Cir. 2008) (“suffered atypical
punishment such as the loss of his reputation and his
company”)
US v. Pauley, 511 F.3d 468 (4th Cir. 2007) (“lost his teaching
certificate and state pension as a result of his conduct,”
consideration of which “is consistent with § 3553(a)’s
directive that the sentence reflect the need for ‘just
punishment’ and ‘adequate deterrence.’”)
US v. Vigil, 476 F.Supp.2d 1231 (D. N.M. 2007) (“suffered
incalculable damage to his personal and professional
reputation as a result of tremendous media coverage of his
case and the case against his co-conspirators” and “was
forced to resign his position as State Treasurer”)
More – Barrett, Collateral Consequences Resource List,
http://www.fd.org/pdf_lib/Collateral%20Consequences%20Re
source%20List.6.1.10.pdf.
Prison can be unjust punishment
• Medical problems BOP will not adequately treat
•
BOP often does not provide “required medical services to inmates.” U.S.
Dep’t of Justice, Office of the Inspector General, Audit Division, The
Federal Bureau of Prisons’ Efforts to Manage Health Care (Feb. 2008),
http://www.justice.gov/oig/reports/BOP/a0808/final.pdf.




U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004)
U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000)
U.S. v. Pineyro, 372 F. Supp. 2d 133 (D. Mass. 2005)
U.S. v. Rausch, 570 F. Supp. 2d 1295 (D. Colo. 2008)
• Empirical research shows that defendants who
are old, young, small are subject to abuse, rape,
violence in prison
•
No More Math Without Subtraction at 64-66, 104, 109-10,
http://www.fd.org/docs/select-topics--sentencing/No_More_Math_Without_Subtraction.pdf
Defendants who are older and/or infirm suffer more
•Hannah T.S. Long, The “Inequality” of Incarceration, 31 Colum. J. L. &
Soc. Probs. 321, 343-44 (1998)
•U.S. Dep’t of Justice, National Institute of Corrections, Correctional
Health Care: Addressing the Needs of Elderly, Chronically Ill, and
Terminally Ill Inmates, at 10 (2004)
•Elaine Crawley & Richard Sparks, Older Men in Prison: Survival, Coping,
and Identity, in The Effects of Imprisonment 343, 346-47 (Alison Liebling &
Shadd Maruna eds., 2005)
Medical Condition …
• U.S. v. Alemenas, 553 F.3d 27 (1st Cir. 2009)
• U.S. v. Kemph,2009 WL 667413 (4th Cir. March 13,
2009)
• U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008)
• U.S. v. Spigner, 416 F.3d 708 (8th Cir. 2005)
• U.S. v. Garcia-Salas, 2007 WL 4553913 (10th Cir. Dec.
27, 2007)
• Rodriguez-Quezada v. U.S., 2008 WL 4302518
(S.D.N.Y. Sept. 15, 2008)
• U.S. v. Carmona-Rodriguez, 2005 WL 840464 (S.D.N.Y.
April 11, 2005)
• U.S. v. Truesdale, 286 Fed. Appx. 9 (4th Cir. 2008)
Need for Deterrence
3553(a)(2)B)
Debunk the Myth
•
•
•
•
•
No particular amount of imprisonment or any
imprisonment is necessary for deterrence.
Michael Tonry, Purposes and Functions of Sentencing, 34
Crime & Just. 1, 28 (2006)
Zvi D. Gabbay, Exploring the Limits of the Restorative
Justice Paradigm: Restorative Justice and White Collar
Crime, 8 Cardozo J. Conflict Resol. 421, 447-48 (2007)
Andrew von Hirsch et al., Criminal Deterrence and Sentence
Severity: An Analysis of Recent Research (1999)
David Weisburd et al., Specific Deterrence in a Sample of
Offenders Convicted of White Collar Crimes, 33 Criminology
587 (1995)
Francis T. Cullen et al. Prisons Do Not Reduce Recidivism:
The High Cost of Ignoring Science, Prison Journal 91: 48S
(2011)
Say It Again:
“Increases in severity have no deterrent
effect.”
• No difference even between probation and
imprisonment in deterrent effect.
– See studies collected in Sentencing by the Statute at 7-9,
http://www.fd.org/docs/select-topics--sentencing/Sentencing_By_the_Statute.pdf.
– Sentencing Memo in Fraud Case, at 14-15,
http://www.fd.org/docs/Select-Topics---sentencing/JamesClient----Fraud-Sentencing-Memo----4-12-11.pdf
US v. Kuhlman, __ F.3d __, 2013 WL
857344 (11th Cir. Mar. 8, 2013)
• DCT varied downward 57 months to probation.
• Gov’t appealed, squawking about general
deterrence.
• “Such a sentence fails to achieve an important
goal of sentencing in a white-collar crime
prosecution: the need for general deterrence. .
.. We are hard-pressed to see how a noncustodial sentence serves the goal of general
deterrence.”
• D did not challenge myth w/ evidence.
• Reversed as substantively unreasonable.
US v. Prosperi, 686 F.3d 32
(1st Cir. 2012)
• DCT varied downward from 87-108 mos to 6 mos
home detention + 1,000 hours community service.
• Considered general deterrence as “the only
[benefit]” of incarceration, but balanced against
government costs and personal costs to D.
• Gov’t appealed, squawking about general
deterrence (among other things).
• Affirmed as substantively reasonable.
• The district court “fulfilled its obligation to consider
the importance of general deterrence . . . It
rejected the view that [] general deterrence could
only be served by incarceration.” Id. at 47-48.
Need for Incapacitation
3553(a)(2)(C)
Age
“Recidivism rates decline relatively
consistently as age increases,” from
35.5% under age 21, to 9.5% over age 50.
USSC, Measuring Recidivism (2004),
http://www.ussc.gov/Research/Research_Publications/Recidivism/2
00405_Recidivism_Criminal_History.pdf
(includes less serious SR violations – not all new crimes)
Recidivism Drops Precipitously with Age
Sampson, Robert J. and Laub, John H., Life-Course Desisters: Trajectories of Crime
Among Delinquent Boys Followed to Age 70, 451 CRIMINOLOGY 555 (2003)
What if the client is young?
•
Young offenders reform in a shorter period of time.
– Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of
Adolescence: Developmental Immaturity, Diminished Responsibility,
and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1011-14
(2003)
– Robert J. Sampson & John H. Laub, Crime in the Making: Pathways
and Turning Points Through Life, 39 Crime & Delinq. 396 (1993)
• Young offenders (e.g., in their 20s) are less culpable than
the average offender because of brain development.
– Jay N. Giedd, Structural Magnetic Resonance Imaging of the
Adolescent Brain, 1021 Annals N.Y. Acad. Science 105-09 (2004);
Margo Gardner & Laurence Steinberg, Peer Influence on Risk
Taking, Risk Preferences and Risky Decision Making in Adolescence
and Adulthood: An Experimental Study, 41 Developmental Psych.
625, 632 (2005); Federal Advisory Committee on Juvenile Justice,
U.S. Dep’t of Justice, Office of Juvenile and Delinquency Prevention,
Annual Report 8 (2005), www.ncjrs.gov/pdffiles1/ojjdp/212757.pdf.
Other characteristics predicting low risk of recidivism
USSC, Measuring Recidivism (2004),
http://www.ussc.gov/Research/Research_Publications/Recidivism/2004
05_Recidivism_Criminal_History.pdf
• First Offenders: rate of reconviction for those with 0 points is 3.5%, with
1 point is 5.5%, with 2 or more points is 10.3%
• Employment: recidivism rate far less if employed in past year than if
unemployed
• Education: the more education, the lower the recidivism rate
• Family: recidivism lower if ever married even if divorced
• Abstinence from drugs: recidivism rate far lower if abstinent for past
year than if used drugs
• Non-Violent Offenders: fraud, larceny and drug offenders the least likely
to recidivate
BOP Research
Low Risk of Recidivism
• Family, education, job
• Miles D. Harer, Federal Bureau of Prisons,
Office of Research and Evaluation,
Recidivism Among Federal Prisoners
Released in 1987 (Aug. 4, 1994),
http://www.bop.gov/news/research_projects/published_r
eports/recidivism/oreprrecid87.pdf.
First Offenders – 0 points
• Lower recidivism rates than other defendants in Criminal
History Category I.
– Michael Edmund O’Neill, Abraham’s Legacy: An Empirical
Assessment of (Nearly) First-Time Offenders in the Federal
System, 42 B.C. L. Rev. 291 (2001).
– A Comparison of the Federal Sentencing Guidelines
Criminal History Category and the U.S. Parole Commission
Salient Factor Score, 15 (Jan. 4, 2005), http// www. ussc.
gov/ publicat/ Recidivism Salient FactorCom.pdf.
– Recidivism and the First Offender (May 2004),
http://www.ussc. gov/publicat/Recidivism-First Offender.pdf.
Lengthy imprisonment increases recidivism by
disrupting employment, reducing prospects of future
employment, weakening family ties, exposing less
serious offenders to more serious offenders.
Lynne M. Vieraitis et al., The Criminogenic Effects of Imprisonment:
Evidence from State Panel Data 1974-2002, 6 Criminology & Pub.
Pol’y 589, 591-93 (2007)
U.S. Sent’g Comm’n, Staff Discussion Paper, Sentencing Options
Under the Guidelines 18-19 (Nov. 1996),
http://www.ussc.gov/Research/Working_Group_Reports/Simplificati
on/SENTOPT.HTM
Miles D. Harer, Do Guideline Sentences for Low-Risk Drug Traffickers
Achieve Their Stated Purposes?, 7 Fed. Sent. Rep. 22 (1994)
Rehabilitation in the Most
Effective Manner, 3553(a)(2)(D)
Mental Health Treatment Works
• Dale E. McNiel & Renée L. Binder, Effectiveness of
a Mental Health Court in Reducing Criminal
Recidivism and Violence, 16 Am. J. Psychiatry
1395-1403 ( 2007)
• Ohio Office of Criminal Justice Services, Research
Briefing 7: Recidivism of Successful Mental Health
Court Participants (2007),
http://www.publicsafety.ohio.gov/links/ocjs_research
briefing7.pdf
Need for Mental Health Treatment Outside of
Prison
• U.S. v. Duhon, 541 F.3d 391 (5th Cir.
2008)
• U.S. v. Polito, 215 F. App’x 354 (5th Cir.
2007)
• U.S. v. Crocker, 2007 WL 2757130 (D.
Kan. Sept. 30, 2007)
• U.S. v. Taylor, 2008 WL 2332314
(S.D.N.Y. June 2, 2008)
Drug treatment works.
• Nat’l Institute on Drug Abuse, National Institutes of Health, Principles of
Drug Abuse Treatment for Criminal Justice Populations (2006),
http://www.nida.nih.gov/PDF/PODAT_CJ/PODAT_CJ.pdf
• Susan L. Ettner et al., Benefit-Cost in the California Treatment Outcome
Project: Does Substance Abuse Treatment “Pay for Itself?”, Health
Services Res. 41(1), 192-213 (2006)
• USSC, Symposium on Alternatives to Incarceration, at 34 & Taxman-8
(2008)
Drug treatment in the community works
even better.
• Missouri Sent’g Advisory Comm’n, Smart Sentencing, Vol. 1, Issue 4
(July 20, 2009)
• Doug McVay, Vincent Schiraldi, & Jason Ziedenberg, Justice Policy
Institute Policy Report, Treatment or Incarceration: National and
State Findings on the Efficacy of Cost Savings of Drug Treatment
Versus Imprisonment at 5-6, 18 (2004)
• Elizabeth K. Drake, Steve Aos, & Marna G. Miller, Washington State
Institute for Public Policy, Evidence-Based Public Policy Options to
Reduce Crime and Criminal Justice Costs: Implications in
Washington State (2009), http://www.wsipp.wa.gov/rptfiles/09-001201.pdf.
Avoid Unwarranted Disparity and
Unwarranted Uniformity, 3553(a)(6)
• Compare to other Ds in same case or other cases who
are different.
– District court should avoid unwarranted similarities among
defendants who are not similarly situated. Gall, 552 U.S. at 55.
• Compare to other similar cases
– Chart in James Client memo
– Chart in US v. Parris, 573 F. Supp. 2d 744, 756 (E.D.N.Y. 2008)
– US v. Panice, 598 F.3d 426 (7th Cir. 2010) (reversing b/c judge
did not consider evidence of sentences in similar cases)
• High rate of below guideline sentences for this type of
crime – 43% for fraud (non-gov’t and gov’t-sponsored)
• Average sentence for fraud offenders who plead guilty =
21 months
Similar/Dissimilar Cases
• E.g.,
– 360 reduced to 60 months, US v. Parris, 573 F. Supp. 2d 744,
745 (E.D.N.Y. 2008)
– 85 years reduced to 42 months, US. Adelson, 441 F. Supp. 2d
506 (S.D.N.Y. 2006)
• Start with govt websites, e.g.,
– U.S. Department of Health and Human Services, Office of the Inspector
General, http://oig.hhs.gov/fraud/enforcement/criminal/index.asp
– Summary of Major U.S. Export Enforcement, Economic Espionage,
Trade Secret and Embargo-Related Criminal Cases (January 2007 to
the present: updated May 2, 2012),
http://www.justice.gov/nsd/docs/export-case-fact-sheet.pdf
– Securities Fraud cases – search for “securities fraud” on
http://www.justice.gov/agencies/index-list.html
– Published decisions, media searches
• Supplement w/info from PACER
US v. VandeBrake, Appellant’s Brief
Disparity caused by government’s use of
guidelines to punish going to trial.
United States v. Ring, 811 F. Supp. 2d
359 (D.D.C. 2011)
Disparity Caused by
Failure to File Motion Under 5K1.1
• 589 variances for cooperation without
§5K1.1 motion.
– USSC, 2011 Sourcebook, tbls.25, 25A, 25B.
–
–
–
–
–
–
US v. Arceo, 535 F.3d 679, 688 & n.3 (7th Cir. 2008)
US v. Blue, 557 F.3d 682, 686 (6th Cir. 2009)
US v. Jackson, 296 Fed. App’x 408, 409 (5th Cir. 2008)
US v. Doe, 218 Fed. App’x 801, 805 (10th Cir. 2007)
US v. Fernandez, 443 F.3d 19, 35 (2d Cir. 2006)
US v. Lazenby, 439 F.3d 928, 933 (8th Cir 2006)
Overarching Parsimony Command
US v. Martinez-Barragan, 545 F.3d 894, 898, 904-05 (10th Cir. 2008):
“When crafting a sentence, the district court must be guided by the
‘parsimony principle’--that the sentence be ‘sufficient, but not greater than
necessary, to comply with the purposes’ of criminal punishment, as
expressed in § 3553(a)(2).”
US v. Johnson, 635 F.3d 983 (7th Cir. 2011):
“unacceptable risk that, in imposing a life [guideline] sentence,” court “did not
account appropriately for the parsimony clause in the governing statute or for
the individual circumstances of Mr. Johnson's case. Accordingly, we vacate
and remand for a redetermination of the sentence in light of the parsimony
principle of 18 U.S.C. § 3553(a).”
Court must “construct a sentence that is minimally sufficient to achieve the
broad goals of sentencing.” US v. Rodriguez, 527 F.3d 221, 228 (1st Cir.
2008).
See also US v. Henderson, 2011 WL 1613411 (9th Cir. Apr. 29, 2011); US v.
Dorvee, 616 F.3d 174, 182 (2d Cir. 2010); US v. Chavez, 611 F.3d 1006,
1010 (9th Cir. 2010); US v. Williams, 475 F.3d 468, 476-77 (2d Cir. 2007).
Sentencing Options 3553(a)(3)
• Community Service – rehabilitative, saves the
community money, saves incarceration costs,
keeps families together
• Fines – based on ability pay; can be more
punitive than prison
• US Sent’g Comm’n, Staff Discussion Paper, Sentencing Options
under the Guidelines (Nov. 1996),
http://www.ussc.gov/Research/Working_Group_Reports/Simplific
ation/SENTOPT.PDF
First Time Non-Violent Offenders Were
Supposed To Get Probation.
• Commn “shall insure that the guidelines reflect
the general appropriateness of imposing a
sentence other than imprisonment in cases in
which the defendant is a first offender who has
not been convicted of a crime of violence or
an otherwise serious offense.” 28 USC 994(j).
What is a “policy disagreement”?
• A determination that the guideline
recommends punishment that is excessive
(or insufficient) to achieve the purposes of
sentencing
• Apart from mitigating case-specific facts that
might otherwise justify a variance, i.e., “even
in a mine-run case.”
Policy Disagreements Kinds of Evidence to Present
• Facts about the guideline to show that it
– was not developed based on empirical data
and national experience
– recommends a sentence greater than
necessary to achieve sentencing purposes
(see, e.g., James Client Memo at 26-40)
• Shouldn’t Be Based “Solely on Judge’s
View”
Kimbrough paradigm
•
Basis is disagreement with the guideline “itself,” grounded in the policy objectives
set forth in § 3553(a), apart from case-specific mitigating (or aggravating) facts.
•
Commission did not use an “empirical approach” based on average time served
before the guidelines for drug trafficking guidelines.
– Instead, ranges set to meet and exceed the two mandatory minimum punishment levels
specified in the Anti-Drug Abuse Act of 1986 and spread the scheme across many
quantity levels.
•
Examined assumptions underlying those punishment levels and the scientific
and criminological evidence showing that they were unfounded.
•
Guidelines did not evolve consistent with current experience and research.
•
Held: Since “the cocaine Guidelines, like all other Guidelines, are advisory only,” it
“would not be an abuse of discretion for a district court to conclude when
sentencing a particular defendant that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.”
•
No occasion to discuss “closer review” because crack guidelines not based on
“empirical evidence and national experience.”
Policy disagreements -- indispensable to a
constitutional system
•Cunningham v. California, 549 U.S. 270,
279-81 (2007)
•Rita v. United States, 551 U.S. 338, 351,
357 (2007)
•Kimbrough v. United States, 552 U.S. 85,
101 (2007)
•Spears v. US, 555 U.S. 261(2009)
108
Applies to all Guidelines
including GLs based on congressional directives
11th Circuit: Judge may not disagree with career offender
guideline because Congress directed the Commission to create it.
Brief for the United States, Vazquez v. United States, 2009 WL
5423020.
–The “premise that congressional directives to the Sentencing
Commission are equally binding on the sentencing courts . . . is
incorrect.”
–“[T]he very essence of an advisory guideline is that a sentencing
court may, subject to appellate review for reasonableness,
disagree with the guideline in imposing sentencing under Section
3553(a).”
–GVR’d. Vazquez v. United States, 130 S. Ct. 1135 (2010).
Supreme Court Has Never Adopted
“Closer Review”
• Dismissed suggestion that “closer review may be in order” for a variance
“based solely on the judge’s view” that the guideline range “fails properly
to reflect § 3553(a) considerations even in a mine-run case”
• Theory: Commn has capacity “to base its determinations on empirical
data and national experience”
• “No occasion for elaborative discussion of this matter” because crack
guidelines not based on “empirical data and national experience.”
Kimbrough
• And “closer review” would be unconstitutional. (Scalia, J.,
concurring)
• Disagreeing with a guideline that does “not exemplify the Commission's
exercise of its characteristic institutional role” is entitled to as much
“respect” on appeal as an individualized determination. Spears
• Ignored J. Breyer’s plea for “closer review” in Pepper
Unlikely To Become a Holding
• If policy disagreements are necessary for
GLs to be advisory and constitutional
• Courts of appeals cannot forbid under
“closer” review
• Unconstitutional
– if court of appeals held judge could not disagree
with a particular guideline, the only basis for a
guideline sentence or an above-guideline
sentence would be judge-found facts
– Violates Sixth Amend. See Cunningham.
Fourth Circuit –
has flirted with “closer review”
• US v. Engle (4th Cir. 2010)
• “If ‘closer review’ of a district court's policy
disagreement is ever warranted, we
believe it would be appropriate in this
case.”
• But can’t do it on this record.
• Rev’d for procedural error b/c DCT failed
to consider Comm’n policy statements re:
general deterrence in tax cases.
Practice Tips
• Don’t let the judge or court of appeals call it a
“policy disagreement” if it’s based on case-specific
facts, in whole or in part
• Present evidence as in Kimbrough, James Client
Memo
• Present evidence as in Gall, Pepper regarding
individualized facts
• Combine with “offense level overstates the
seriousness of the offense” departure if available
Contact us if problems with “closer review”
• [email protected][email protected]
Sentencing Resources – www.fd.org
•
Sentencing by the Statute
– Important Overview and Information on Sentencing Purposes, Variances, Probation,
How to Determine Past Practice Sentence, Deconstruction
•
No More Math Without Subtraction, Part IV
– Empirical Research, Statistics, and Caselaw on numerous mitigating factors
•
Where Procedure Meets Substance: Making the Most of the Need for Adequate Explanation
(Nov. 2011)
•
Appellate Decisions After Gall
•
Hemingway & Hinton, Departures and Variances - Outline of Caselaw on All Kinds of
Variances and Departures
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Fighting Fiction with Fact: Research to Help Advocate for Lower Sentences
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Deconstructing the Guidelines; briefs, papers, articles
– Career Offender
– “Relevant” Conduct -- Acquitted and Uncharged Crimes
– Child Pornography
– Drugs
– Firearms
– Fraud
– Immigration
– Probation
– Tax
– Mitigating Factors

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